Posted 5:45 PM by Howard Bashman

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October 28, 2005

CONSERVATIVES REJOICE AT NOMINEE'S WITHDRAWAL
Is Nominating Prominent Strict-Constructionist to High Court Too Risky?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Having played a major role in forcing the White House to withdraw Harriet E. Miers' nomination to the Supreme Court, conservative activists now believe they have the momentum to encourage President Bush to name a prominent strict-constructionist jurist.

But whether the president wants to make a gesture that could lead to a protracted battle or even filibuster in the Senate is another question.

Some observers believe he can find someone, like recently appointed Chief Justice John G. Roberts Jr., who will appease both the extreme right and moderate wings of his party - and, ideally, a handful of Democrats.

Conservative activists acknowledge that a Senate showdown over a particularly outspoken conservative nominee may end in defeat. But to them, that showdown would be in the long-term interests of the country and a way to heal the wounds caused by the failed nomination of Robert H. Bork in 1987.

They also retain resentment about the nomination of David H. Souter by President Bush's father in 1991, who was widely seen as a "stealth" nominee who turned out to be liberal once on the court.

Manuel A. Miranda, a coordinator of conservative opposition to Miers and a former aide to Senate Majority Leader Bill Frist of Tennessee, called Thursday for Bush to make a nomination that "overcomes the stigma created by the Bork and Souter experiences."

Miranda made clear that he and his fellow activists would welcome a partisan confrontation with Democrats.

He wrote in an e-mail to reporters that it is time to end "the corrupting practice of stealth nominees," of which Souter is the poster child.

"The president and his team should not shy from a national debate that reflects well on this great and blessed nation," Miranda added.

Sean Rushton, executive director of the Committee for Justice, a group set up to support Bush's nominees, echoed those sentiments.

Rushton said the president should not be concerned about nominating a prominent conservative jurist as long as the person concerned is suitably well-qualified and capable of withstanding penetrating questions before the Senate Judiciary Committee.

"I think the president needs to go for the best constructionist out there," Rushton added.

But neither the White House nor Republican senators necessarily would welcome a partisan struggle over the nomination.

Both Frist and White House spokesman Scott McClellan told reporters that Miers withdrew purely because of discussions between senators and the president's aides concerning the likelihood of her being confirmed.

"We've always been focused on the Senate, not on the outside commentary or outside groups," McClellan said.

The White House stuck Thursday to its official line that Miers withdrew because of "unsolvable conflicts" over demands from senators to see some documents relating to her role as White House counsel, the job she will return to.

"It was the discussions that we had and the meetings that Harriet Miers had with senators that led us to the belief that this was simply a conflict that could not be resolved," McClellan said.

With other issues on the agenda for both branches of government, ranging from the war in Iraq to the federal budget, a nominee who could appeal to Republicans and to some moderate Democrats may be attractive.

Frist, for example, said Thursday he hoped the next nominee would be confirmed as soon as possible, which won't happen with a long partisan struggle.

Sen. Arlen Specter, R-Pa., speaking on the Senate floor, expressed his frustration that conservative activists had succeeded in forcing Miers to withdraw before she had a chance to defend herself at the confirmation hearing.

"Instead of a hearing before the Judiciary Committee and a debate on the Senate floor, Ms. Miers' qualifications were subjected to a one-sided debate in new releases, press conferences, radio and TV talk shows, and the editorial pages," Specter said.

Potential nominees whom the conservative activists would welcome include Priscilla Owen, a judge on the 5th U.S. Circuit Court of Appeals, and former California Supreme Court Justice Janice Rogers Brown, now of the U.S. Court of Appeals for the District of Columbia Circuit, both of whom Democrats initially blocked with filibusters when nominated to their current positions.

They were confirmed, thanks to the compromise agreement in May, in which 14 senators from both parties reached a deal to avoid further filibusters.

Rushton said the received wisdom that Rogers Brown would face an uphill battle to be confirmed is not necessarily true, claiming that Democrats would be put in a difficult position if they voted against an African-American nominee.

"I think putting forward a Janice Rogers Brown in the wake of Hurricane Katrina would tie the Democrats in knots," he added.

Rushton referred to the perception, seized on by Democrats, that the federal government did not adequately assist African-Americans following the disaster.

Some Democratic senators made it clear Thursday that an openly right-wing candidate would receive a more hostile welcome than Roberts or Miers.

For instance, asked about the chances of Owen being nominated, Sen. Charles E. Schumer, D-New York, said, "That one is easy. We have a history with Priscilla Owen."

Sen. Patrick J. Leahy, D-Vt., the ranking member on the Judiciary Committee, said he hoped the president would consult with the Senate and reach a decision "with the necessary independence from partisan factions."

Sheldon Goldman, a political science professor at the University of Massachusetts, Amherst, pointed out, an all-out battle in the Senate over a controversial nominee could be attractive to the president in one sense: It could divert attention from his other problems.

With indictments possibly coming as soon as today in the Valerie Plame leak case, nominating "someone clearly appealing to the base," like Owen or even Miguel Estrada, who withdrew his nomination to the District of Columbia Circuit following opposition from Democrats, could rally conservative support for the White House, Goldman said.

"This is a way of changing the subject," he added.

Richard Davis, a political science professor at Brigham Young University, agreed, stressing that Bush needs the support of his conservative base through the remaining three years of his term.

"He is going to bend over backwards to please them," Davis said. "He has learned that someone who is not what the right wing wants is not acceptable."

But, as Goldman and other political observers noted, another option for Bush would be to repeat what he did with Roberts and pick a known conservative who has professional credentials impressive enough to woo some Democrats and prevent a possible filibuster.

"Roberts showed the way," said Eugene Volokh, a law professor at UCLA.

Volokh added that the president could choose among "many well-regarded conservative appellate judges" with distinguished records.

Several experts, including Volokh, have suggested that Judge Michael W. McConnell of the 10th Circuit would fit into that category.

McConnell attracts support from social and religious conservatives because he has expressed opposition to Roe v. Wade and has argued in favor of government aid for religious schools.

Unlike Miers, he has experience as a judge and a long public record.

McConnell also has strong academic credentials. Before being appointed to the 10th Circuit by Bush in 2002, he was a law professor well-known for his expertise in the First Amendment.

"He would please the conservatives and attract much support among liberal academics and lawyers, making his confirmation likely without blowing up the Senate," said Thomas E. Mann, a constitutional scholar at the Brookings Institution in Washington.

Rushton also believes McConnell, whom he described as a "principled constructionist," would be a strong candidate whom conservatives would be happy with.

Known for his quiet and friendly demeanor, McConnell would be well-equipped to face a tough interrogation from the likes of Schumer and Sen. Edward M. Kennedy, D-Mass., Rushton added.

All the other names mentioned Thursday as possible nominees are the same ones thought to be on the president's shortlist before Miers was nominated.

Although several women, such as Edith H. Jones of the 5th Circuit and Alice Batchelder of the 6th Circuit, remain high on the lists of some conservatives, Bush may decide to nominate a man.

Samuel A. Alito Jr., a judge on the 3rd Circuit with views similar to Justice Antonin Scalia, was thought to be near the top of Bush's list before Miers was nominated, and J. Michael Luttig, who sits on the 4th Circuit, also has been mentioned often.

Attorney General Alberto G. Gonzales and Emilio M. Garza, a judge on the 5th Circuit, are two potential nominees who could be the first Hispanics on the Supreme Court.

However, Gonzales, a former White House counsel, could run into some of the same problems with privileged documents as Miers.

Bush said he would nominate a replacement in a "timely manner," although there is no indication whether an announcement is imminent.

Posted 11:50 PM by Howard Bashman

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October 20, 2005

SENATORS TO NOMINEE: BE FORTHCOMING

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Citing a lack of information about Supreme Court nominee Harriet E. Miers, Democrats and Republicans on the Senate Judiciary Committee have joined forces to demand further answers and documents from both the nominee and the White House.

Committee Chairman Arlen Specter, R-Pa., and ranking member Patrick J. Leahy, D-Vt., sent a letter to Miers on Wednesday in which they raised concerns about the lack of detail in the questionnaire she returned to them the previous day.

"Senator Leahy and I took a look at it and agreed it was insufficient," Specter said at a press conference, during which he announced that the confirmation hearing will begin the week of Nov. 7.

Leahy said he has heard senators describe Miers' questionnaire answers as ranging from "inadequate to insulting."

Miers, in a letter Wednesday to the committee, said she would "work to provide additional materials to the committee."

Demand for more information has come from across the political spectrum.

For instance, Republican Sens. Lindsey Graham of South Carolina and Sam Brownback of Kansas have joined Specter and Leahy in calling for more documents from the White House, citing the lack of evidence that would give any insight into Miers' judicial philosophy.

Brownback, a prominent religious conservative in the Senate, is seeking documents outlying Miers' views on policy issues, and Graham, a moderate who helped end judicial-nomination filibusters, has said he wants anything that shows her analyses of constitutional matters.

Democrats have issued similar demands, with Sen. Charles E. Schumer of New York saying Wednesday he believed the hearing was being held too early.

"We know less about this nominee than we know about any other previous nominee, and her questionnaire sheds no light on what would be the most illuminating experience: her service in the White House," Schumer said.

The bipartisan nature of the effort is in stark contrast to the nomination proceedings over the summer for John G. Roberts Jr., highlighting the concerns senators from both parties have about Miers.

In that instance, Democrats were alone in demanding more documents, particularly concerning his work in the executive branch.

Now the White House, and Miers herself, are under pressure from members of their own party as well as Democrats to be more forthcoming.

White House spokeswoman Jeanie Mamo said Miers had told Specter early on that she had "years of files to go through" before completing the questionnaire.

"She said it was likely she would have to send follow-ups," Mamo added.

In their jointly signed letter, Specter and Leahy asked Miers to provide supplemental responses to nine of the 28 questions contained in the original questionnaire, on issues ranging from organizations to which she has belonged to more headline-worthy topics, such as matters she worked on as White House counsel.

Specter said the committee needed more information.

"We don't have much of a record," he said.

Leahy agreed, describing the questionnaire responses as "inadequate."

Specter highlighted Miers' White House duties as a particular cause of concern because of potential conflicts of interest that might arise if she is confirmed.

The committee needs to know in what instances Miers would consider recusing herself, Leahy said.

The letter specifically asks for "all reports, memoranda, or policy statements" that Miers prepared or worked on while at the White House and in previous positions as president of the Dallas and Texas bars, a senior American Bar Association official and a Dallas City Council member.

Referring to White House documents, Specter said he expected to be furnished with all relevant documents that aren't covered by executive privilege.

Those would help give an insight into her knowledge of and experience interpreting constitutional law, he said.

Some Democrats may push harder in the hope of forcing the White House to waive its executive privilege.

Israel S. Klein, a spokesman for Schumer, said the senator would seek "as much as possible," although he acknowledged that persuading the White House to release privileged information would be a difficult task.

Leahy said at the press conference that "a number of Republicans" have asked for nonprivileged information, indicating that the tone of the confirmation hearing will be very different from Roberts'.

"All 18 senators [on the committee] are going to have probing questions," Leahy predicted.

Asked to give an example of a document he expected the White House to release, Specter said he was interested in particular about correspondence with conservative interest groups.

This follows reports in the media that the White House may have given assurances to some religious groups that Miers would support overturning Roe v. Wade.

Specter revealed that he had asked Miers whether, when she was involved in selecting judicial nominees, the candidates were asked about Roe v. Wade.

"She said there was no litmus test," Specter added. "I said that's a significant answer."

Despite the obvious concerns he and Leahy have about Miers' answers, both stressed that their colleagues should keep their minds open about the nomination until the hearings are complete.

"Give this nominee a chance to be heard," Specter said.

Posted 11:45 PM by Howard Bashman

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October 20, 2005

SENATORS WILL PROBE RECUSAL ISSUE
Nominee's Work as White House Counsel Likely Will Arise

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Supreme Court nominee Harriet E. Miers likely will come under pressure at her confirmation hearing to concede that she will have to recuse herself from certain cases linked to her role as a White House employee.

Once on the bench, a Supreme Court justice has considerable discretion over recusal issues, which is why Democrats in particular will be keen to force Miers into some kind of on-the-record admission.

"It's an area that senators are interested in exploring," a Democratic staffer on the Senate Judiciary Committee confirmed Monday.

Miers has been asked to comment on the matter in the questionnaire she returned to the Judiciary Committee on Tuesday.

She stated that she would "resolve any potential conflict of interest by abiding by both the spirit and letter of the law," namely 28 U.S.C. Section 455, which outlines a code of conduct for United States judges.

"These proscriptions would provide needed direction concerning the recusals necessary as a result of my government services or previous representations as a private lawyer," Miers added.

Any further comments she makes before the committee could be used against her should a controversial case involving the Bush administration come before the court.

But experts believe Miers will give an elusive answer in order to avoid putting herself in that position.

"Will Harriet Miers have to say something vague, reassuring, noncommittal and utterly unbinding? Yes," said Supreme Court historian David J. Garrow. "And the future weight or import of that statement is - zero."

But that won't stop Democrats from trying, said Sheldon Goldman, a political scientist at the University of Massachusetts, Amherst.

"I would think they would try and get a commitment from her that she would indeed recuse herself from anything she gave advice on or worked on," Goldman said.

Recent history shows that justices are reluctant to recuse themselves from any case.

In 2004, Justice Antonin Scalia declined to recuse himself from a case involving Vice President Dick Cheney, with whom he had gone duck hunting just weeks before the Supreme Court decided to hear the matter.

The case, Cheney v. U.S. District Court for the District of Columbia, focused on whether the White House should make public documents pertaining to an energy task force Cheney chaired. An environmental advocacy group, the Sierra Club, filed the motion for recusal.

Scalia wrote in a memorandum that he did not believe there was a conflict of interest.

"If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined," he wrote.

Perhaps because of the publicity generated by the duck-hunting story, Justice Stephen G. Breyer was careful to seek advice from legal experts before deciding that he could sit on the bench to hear two sentencing cases, U.S. v. Booker and U.S. v. Fanfan.

He was concerned that people may perceive a conflict of interest because he had helped write the federal sentencing guidelines that those two cases challenged.

Like Scalia, though, he opted not to recuse himself.

Chief Justice William H. Rehnquist took the same action in 1972, despite criticism that he should have recused himself in Laird v. Tatum, a case concerning Army surveillance of U.S. citizens.

The Nixon administration policy that was being challenged in the case had been formulated when Rehnquist was in charge of the Department of Justice's Office of Legal Counsel.

The problem with Supreme Court recusals is that the justice at the center of the allegation makes the call, according to Lisa Lerman, a legal ethics professor at Catholic University of America.

"I think it's very difficult if you are alleging bias to make the argument to the person who you are saying is biased," Lerman said.

Justices make the decision based on Title 28 Section 455 of the U.S. Code, which contains guidelines on recusals.

The code states that "any justice ... of the United States shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned."

Circumstances that should be taken into account include when the judge "has a personal bias or prejudice concerning a party" and instances when the judge "served as a lawyer in the matter in controversy."

Furthermore, the code says that a justice should recuse himself or herself "where he [or she] has served in governmental employment and in such capacity participated as counsel, adviser or material witness."

Lerman cautioned that just because Miers' role as White House counsel made her a central figure in the administration, she would not necessarily face a conflict of interest in any case involving the president.

The recusal question likely would be most pertinent in any case in which President Bush or other White House officials were parties.

"Since she is widely regarded as the world's most loyal White House counsel, the appearance of personal bias should lead her to recuse herself," Lerman said.

One case with a potential conflict is the latest Guantanamo Bay detainee case, Hamdan v. Rumsfeld, according to John C. Wohlstetter, a senior fellow at the Discovery Institute, a Seattle-based public-policy think tank.

In Hamdan, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Bush administration's decision to prosecute enemy detainees using military commissions.

Wohlstetter argued that Miers should recuse herself in any case in which she gave advice to the president, or risk "tainting the decision in the eyes of the public."

He added that it would be "exceedingly unlikely if she had not participated in any discussions of that kind" over the Hamdan case.

The implications in that particular proceeding if she recused herself would be immense, Wohlstetter said, not least because Chief Justice John G. Roberts Jr. also likely will recuse himself because he was on the appellate panel that ruled on the case in July.

Wohlstetter said that would raise the prospect of Hamdan's appeal being granted 4-3, with the court's more-liberal judges for once in the ascendancy.

Other interest groups also are seizing on the recusal issue, hoping that it may help their causes.

Abortion rights groups have suggested, for example, that Miers would have to recuse herself in a case concerning parental notification of abortions, Ayotte v. Planned Parenthood of Northern New England, 04-1144.

The U.S. solicitor general's office has filed an amicus brief in that case in support of a state law that requires parental notification. Abortion rights advocates say they are concerned that Miers, in her role as White House counsel, would have helped to stake out the administration's position on that case.

However, she is unlikely to be on the bench by the time the case is heard Nov. 30, although the court could decide to rehear it if she chose not to recuse herself.

As Goldman observed, Miers will be walking a tightrope on a number of issues when she appears before the Senate Judiciary Committee.

Until now, Democrats have been largely silent about the nomination while Miers is attacked by right-wing conservatives.

But at the hearing, she will be under fire from both right and left.

The recusal question is just one that will test her credentials to sit on the nation's highest court.

"The Democrats aren't going to do anything until the hearings proceed," Goldman said. "Then, they and the rest of country will see how she answers the questions."

Posted 1:00 PM by Howard Bashman

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October 21, 2005

Breyer Patch of Jurisprudence Focuses on Pragmatism
Supreme Court Notebook

By Brent Kendall
Daily Journal Staff Writer
Justice Stephen G. Breyer says the title of his new book, "Active Liberty," captures the basic theme that runs through his method of judging: Judges, he says, should pay attention to the Constitution's democratic purposes and to the practical consequences of their decisions when interpreting the law.

On the bench last week, Justice Antonin Scalia, whose textual, originalist philosophy comes under fire in Breyer's book, coined his own phrase for Breyer's approach.

Scalia's moniker came as Breyer was proposing a "third-way" resolution to Berkeley attorney Nina Rivkind in a complicated California death-penalty case.

"He wants to know whether you would like to be thrown into the Breyer patch," Scalia said. "I think the answer is yes."

Breyer's "patch" of jurisprudence has received widespread attention since June, when he proved the decisive vote in the court's split decisions on two closely watched cases involving displays of the Ten Commandments.

In a pair of 5-4 votes, the justices ruled that a Ten Commandments monument on the grounds of the Texas State Capitol was constitutional but that framed displays of the Ten Commandments in two Kentucky courthouses were not.

Breyer was the only justice in the majority on both decisions. His eight colleagues thought neither, or both, displays were constitutional.

Breyer said that, when he considered the basic purposes of the First Amendment's Religion Clauses, he found that the 40-year-old Texas display fell on the permissible side of the constitutional line but that the recent Kentucky displays did not because of the religious objectives behind them.

The practical-minded Clinton appointee also played a key role in the court's January decision on the federal sentencing guidelines in U.S. v. Booker.

Though Breyer was on the losing side of a 5-4 decision that invalidated the guidelines as a mandatory scheme, he wrote the second part of the court's opinion, in which a different five-justice majority kept the guidelines in place as an advisory system.

Breyer's pragmatic inclinations have been on display during the first two weeks of the court's new term, when he sought middle ground in both the Oregon assisted-suicide case and in a potentially important First Amendment case examining the free-speech rights of public employees.

Scalia's "Breyer patch" comment came as the justices heard oral arguments to decide how California judges must deal with death sentences when some of the underlying aggravating factors for those sentences are invalidated.

High-court precedent provides differing standards on how judges must treat invalidated factors, depending on the type of death-penalty scheme at issue.

Breyer raised the possibility of applying the same standards across the board.

"You would not have this crossword puzzle which probably only five people in the United States understand," he said.

WHAT A DOLL - Want a bobblehead doll of Chief Justice William H. Rehnquist? Be prepared to pay hundreds of dollars for it, if not more.

In eBay auctions in September, two of the limited edition dolls, produced by the Green Bag, a legal journal at George Mason University in Virginia, sold for $2,025 and $2,151. A third Rehnquist doll sold last week for $880.

The Green Bag began producing Supreme Court bobbleheads in the spring of 2003, giving them to subscribers and other friends of the journal. The Rehnquist doll was the first of the bobbleheads and is the rarest, with only 1,008 in existence.

The journal has given away dolls of Justices John Paul Stevens and Sandra Day O'Connor and is distributing its Antonin Scalia bobblehead.

Green Bag Editor Ross Davies, a law professor at George Mason, said each of the later bobbleheads has been produced in greater quantity than the one before because of the journal's growing number of subscribers. The journal made 1,710 bobbing Scalias.

"I'm just amazed," Davies said of the prices the dolls were fetching at auction.

Davies described the Green Bag as a "puny little academic magazine" and said the journal has been "extremely fierce and insistent that, when you buy a subscription to the Green Bag, that's all you get."

The dolls are gifts, he said, and no one is guaranteed to receive them.

Davies said the Green Bag gives several dozen of each of the bobbleheads to various public-interest legal groups who auction them at their annual fundraisers.

Gregory Jacob, another of the Green Bag's editors, said he has auctioned four dolls - one of each bobblehead - to raise money for a teen center in Iowa.

"I never had any idea that I'd be able to raise as much as I did," said Jacob, whose Rehnquist doll went for the $2,151. His Stevens doll sold for $800.

According to the popular legal blog How Appealing, run by Pennsylvania appellate lawyer Howard Bashman, recent O'Connor and Scalia bobbleheads have sold in the $300-to-$400 range.

The high auction prices are inspiring other charity bobblehead efforts.

Frequent Supreme Court litigator Thomas Goldstein of Goldstein & Howe in Washington, D.C., tells the Daily Journal that he plans to put his own Rehnquist bobblehead up for auction soon to raise money for Hurricane Katrina relief.

ROUNDING FIRST - Little-noticed during the opening two weeks of the court's 2005-06 term were a couple of firsts for Chief Justice John G. Roberts Jr.

The court issued its first opinion of the Roberts era, a unanimous, unsigned summary reversal of the Cincinnati-based 6th U.S. Circuit Court of Appeals, which had denied habeas relief to a convicted murderer in Michigan.

A 6th Circuit panel originally granted relief, holding that a state prosecutor had engaged in flagrant misconduct. But a different panel reheard the case and ruled against the prisoner, Paul Allen Dye.

The Supreme Court reversed the second panel last Tuesday, holding that the 6th Circuit erred in concluding that Dye failed to raise a federal claim. The justices also held that the 6th Circuit was wrong in deciding that Dye's prosecutorial-misconduct claim was presented in too vague a form. Dye v. Hofbauer, 2005 DJDAR 12141 ( U.S. Sct. Oct. 11, 2005).

The beginning of the term also saw Roberts sit out his first case: He was absent for oral arguments in Schaffer v. Weast, 04-698, a case in which the parents of a disabled Maryland boy are challenging the adequacy of a special-education program set up by the boy's public school.

Roberts did not comment on his decision not to participate, but the best guess is that he sat out because Gregory Garre of Hogan & Hartson, Roberts' old law firm, argued the case for the school system.

Roberts and Garre were partners at Hogan.

Garre has left the firm to become the political deputy in the solicitor general's office - a post once held by Roberts. In his new role, Garre is sure to argue a number of cases before the high court. It's hard to imagine that Roberts would sit out those cases.

Posted 10:40 PM by Howard Bashman

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October 13, 2005

PROP. 77 ACTIONS RAISE EYEBROWS
Critics Suggest Governor, Judicial Branch Were Too Cozy

By Linda Rapattoni
Daily Journal Staff Writer
SACRAMENTO - Nobody accuses the governor's top legal adviser of committing a crime when he tried to rescue a controversial ballot initiative by writing a letter to the Third District Court of Appeal.

Nor would judicial ethics guidelines have forbidden the appellate court's presiding judge from deciding the fate of the ballot measure while he quietly worked behind the scenes for the governor screening judicial candidates.

And there was nothing in state law to stop a recently departed member of the same court, now in private practice, from appearing before his former colleagues in an 11th hour ballot appeal on behalf of the governor.

But to some critics, these actions this summer illustrate a relationship between the executive branch and the Republican-dominated court that is too close for comfort.

Former Legal Affairs Secretary Peter Siggins, 3rd DCA Presiding Justice Arthur Scotland and former 3rd DCA Justice Daniel Kolkey all had a role in the court battle to resurrect Proposition 77. The measure on the November ballot will overhaul the process for drawing political district boundaries in California.

Opponents of the initiative and legal scholars say Siggins, in writing his letter on the taxpayers' dime, went beyond his official role as a government lawyer and became an advocate for the redistricting proposal. They say Scotland, a Republican, should have exercised more caution in handling a politically charged case while simultaneously helping the governor pick future judges. And they say Kolkey, now a partner with Gibson, Dunn & Crutcher, gained an unfair inside advantage when he appeared before the very court where he sat for five years.

The most vocal critic is one of the state's highest-ranking Democrats. Assembly Speaker Fabian Nunez said the blurry boundaries between adviser, advocate and judge in the Proposition 77 matter create the appearance of the governor pressuring the 3rd DCA in Sacramento to save his ballot initiative.

Nunez vowed to introduce legislation next year to plug what he regards as chinks in the wall separating the branches of government.

"They [governor's staff] are an appointing authority," Nunez said. "To have an appointing authority get their way on matters of great importance to their survivability is flat wrong. This whole thing does not give me a sense of good government at work."

Siggins insisted nothing underhanded took place.

"It's a conspiracy theory, and it's a claim that I just don't think has merit," he said in a recent interview.

Showdown Over Proposition 77
With Proposition 77, Republican Gov. Arnold Schwarzenegger wants to pull lawmakers' authority to map electoral districts and hand over that responsibility to a panel of retired judges. Proposition 77 could fundamentally shift the balance of political power in the nation's most populous state starting next year.

The initiative almost didn't make it to the ballot. A clerk from the governor's campaign team mistakenly sent the wrong version into circulation for qualifying signatures. A version with slightly different wording went to the Attorney General's Office to prepare a title and summary for the ballot.

Opponents went to court to keep Proposition 77 off the ballot, citing the inconsistencies, and a Sacramento trial judge sided with them. Kolkey, who drafted the measure for Schwarzenegger, worked with Siggins to revive Proposition 77 in a last-ditch appeal just before the deadline for finalizing the line-up of measures on the fall ballot.

In late July, Siggins wrote a two-paragraph letter on the governor's official letterhead to urge the 3rd DCA to keep the ballot measure alive while the court decided whether it was legal to place it before voters.

Scotland Got Prop. 77 Case
One of the appellate judges randomly assigned to hear the appeal was Presiding Justice Arthur Scotland. Scotland sided with supporters of the governor's ballot measure, but was outvoted by the other two panelists.

In his dissent, Scotland noted the Supreme Court's inclination to let voters have their say on ballot measures before ruling on constitutional challenges.

"When the California Supreme Court speaks, I listen," Scotland wrote.

Four days later, the Supreme Court approved of Scotland's reasoning, voting 4-2 to put Proposition 77 back on the ballot. Costa v. Superior Court (Sacramento), S136294.

Scotland, a onetime undercover state drug agent, has presided over the 3rd DCA for nearly seven years. He worked for Attorney General George Deukmejian in the early 1980s. After Deukmejian became governor, he appointed Scotland as his cabinet secretary, and later, to the Sacramento Superior Court and the 3rd DCA.

Unknown to many, Scotland is one of eight judges and lawyers chosen by Gov. Schwarzenegger to serve on a local bipartisan committee screening prospective judges.

Schwarzenegger's judicial appointments secretary, John Davies, sends the names of potential nominees to committees in different regions of the state who conduct background checks and report back with their recommendations.

Scotland had to cast judgment on a ballot measure that was an important plank in Schwarzenegger's political career at the same time he was helping the governor fill a rare vacancy on the California Supreme Court.

Early in the summer, Scotland himself was rumored in several newspapers to be on the governor's shortlist for the vacancy, just as he had been in 1996. Those rumors now appear to have been unfounded.

In mid-August, after Scotland voted to keep Proposition 77 on the ballot, one of his longtime colleagues on the 3rd DCA, Vance Raye, emerged as a leading contender for the state Supreme Court seat.

Scotland's dual roles
Court watcher Stephen Barnett, a U.C. Berkeley Boalt Hall emeritus professor, said Scotland's dual roles raise at least the appearance of a conflict of interest. He said Scotland should have disclosed to all the parties on the Proposition 77 litigation that he serves on the governor's committee.

"It's not a terrible thing, but it does raise the eyebrows," Barnett said in an interview. "If appellate judges can sit on these judge-vetting panels, there could be any number of cases that involve the governor's interest that come before the panel. So it seems to me an ongoing problem that this case has exposed."

Barnett himself had an interest in the case. He tried to file a friend of the court brief on behalf of the Mexican American Political Association to urge the court to leave the initiative on the ballot. But Scotland rejected the amicus briefs filed by Barnett and other interest groups.

Barnett acknowledged that Scotland does not gain much by sitting on a select committee screening judges, but the professor said "it's an additional bit of power to the justice that this governor has conferred upon [him]."

"It makes the justice a part of the governor's team and that can be questioned under the separation of powers doctrine," Barnett said.

Scotland said every governor for the past 40 years has sought the advice of local judicial selection committees and said the governor does not always follow committees' recommendations.

"It is unfortunate that someone who is so obviously uninformed has made such a baseless attack upon my integrity," Scotland said in response to Barnett's remarks.

Los Angeles Superior Court Judge Burt Pines, who was Gov. Gray Davis' judicial appointments secretary, said Scotland enjoys "an impeccable record for integrity" and would never do anything to compromise the independence of the court.

"I wouldn't say they [judges on advisory committees] had a conflict because I sought their advice," Pines said.

"Judges have an interest in getting high quality people on their respective courts," he explained. "It's appropriate when their advice is solicited that they are able to give it without having to disqualify themselves later from matters involving the administration. If we had a rule disqualifying judges from giving advice we would shut down a major source of valuable insights on candidates on the bench."

An ethics handbook widely used by California judges says there's nothing wrong with advising the governor and lawmakers about court-related matters. But the California Judicial Handbook cautions judges not to mix too much in the business of other branches of government.

"Judges should seriously consider avoidance of legislative and executive branch advocacy altogether; and when this is not possible, should exercise extreme care," author David M. Rothman, a former Los Angeles judge, wrote in the 1999 edition.

One well-known federal judge in California has publicly commented on how hard it is for judges to resist pleasing the governor's office.

"The temptation to decide cases in a way that will please those in the political process who have the power to appoint, retain and promote judges is one of the most ubiquitous moral hazards facing members of the judiciary," U.S. 9th Circuit Court Judge Alex Kozinski wrote last year in a law journal. 32 Hofstra Law Review 1095

Some lawyers familiar with the Proposition 77 case said Scotland had no ethical obligation to recuse himself or even to disclose his Schwarzenegger committee service as a potential conflict of interest.

Republican political lawyer Steven Merksamer said it was "hypercritical" to suggest Scotland acted improperly. Merksamer said anyone criticizing Scotland should cite a violation of State Bar rules or the Canon of Judicial Ethics.

"They don't because there is none that I know of," said Merksamer, a partner in Nielsen, Merksamer, Parrinello, Mueller & Naylor of Sacramento.

Siggins Letter Causes Stir
Siggins, appointed as the governor's chief legal counsel in November 2003, all along had a hand in keeping the initiative alive, but some believe he went too far when he wrote to Scotland as a member of the governor's taxpayer-funded staff.

Siggins consulted with Kolkey while Proposition 77 was being drafted, conferred with state election officials over which version of the measure should appear on the ballot, and aided Schwarzenegger in devising a defense strategy when the initiative was legally challenged.

Siggins is now acting as Schwarzenegger's chief of staff while Pat Clarey, who held that position until recently, campaigns for the governor's ballot measures. Siggins is also in consideration for a vacancy on the San Francisco-based 1st District Court of Appeal.

In an interview, he brushed aside any notion that his letter to the 3rd DCA could have pressured Scotland's court into favoring the governor in the Proposition 77 case. Siggins knew Scotland was helping the governor screen judges, but said he didn't think twice about writing to Scotland as the 3rd DCA's presiding justice.

"I knew he [Scotland] was on the committee," Siggins said. "But he is also the presiding justice of the court so in my view that was the appropriate addressee."

No one has questioned the legality of Siggins' involvement in the early stages of the ballot measure qualifying process.

California court decisions going back nearly 30 years hold that government resources can be spent on ballot measures as long as government officials do not advocate a yes or no vote. Stanson v. Mott, 17 Cal.App. 3rd 206 (1976).

Courts also have said public funds can be spent in drafting an initiative, but can't be spent promoting it. League of Women Voters of California v. Countywide Criminal Justice Coordination Committee, 203 Cal.App. 3d 529 (1988).

But election law scholars are of mixed views as to where exactly to draw the line on the involvement of the governor's legal affairs secretary once a voter initiative circulates among voters for signatures to qualify for the ballot.

One school of thought holds that Siggins' letter to Scotland was safely within the purview of the governor's executive authority. Advocates of a more conservative approach say Siggins should have bowed out after the measure was drafted.

UCLA law professor Dan Lowenstein represented opponents of Proposition 77 in the ballot measure challenge. But as a co-author the California Political Reform Act, which governs election campaigning, Lowenstein said he believes the governor and his legal affairs secretary have a right to participate in litigation over "policy" matters.

"I wouldn't suggest that it runs afoul of Stanson v. Mott, and I think the governor and his legal affairs secretary have a right to participate in litigation," Lowenstein said. "I don't see a misuse of public funds."

Lowenstein said it doesn't matter that the governor was not a party in the case and that the letter wasn't submitted in the typical form of an amicus brief.

"... In certain situations, lawyers representing clients will communicate with a court through a letter," he said.

Drawing an Ethical Line
The two-paragraph letter on the governor's stationery referenced the court case, but it contained no legal analysis. It simply asked the court to allow information about Proposition 77 to be included in the state's voter information materials while the legal issues in the case were still awaiting appellate review. There is no mention of the letter in the docket of filings in the case.

Kolkey said Siggins' letter could hardly be construed as advocacy.

"As I recall, the letter did not even ask the court to rule in any particular way on the merits and was solely concerned with maintaining the status quo, pending court review, in order to preserve the option of reinstating Proposition 77 on the November ballot," he said.

On the other side, Democratic Party lawyer Lance Olson, who represented a non-profit group opposed to Proposition 77, said it was improper for Siggins to write the letter.

He noted that the governor was not a party in the case and had no official role in the certification of the ballot initiative. He described the letter as "highly unusual."

"His [the governor's] only interest is political," said Olson, a partner in Olson, Hagel & Fishburn of Sacramento. "That's why it's inappropriate to use his legal affairs secretary to write a letter. If you read the letter, it's a pretty poor excuse for an amicus brief. There's no legal analysis."

Richard Zitrin, an ethics professor at the University of San Francisco, said it was disingenuous for Siggins not to disclose in his letter that the governor had no standing in the case. Zitrin contends the letter's silence on that point implied that the governor had grounds for intervening.

"I don't think it's appropriate for counsel to the governor to intercede where he doesn't have standing and where he doesn't represent the State of California," said Zitrin, whose San Francisco firm is Zitrin and Mastromonaco.

Siggins said he did not think there was any need to ask the court for permission to intervene on behalf of the governor.

"Because the governor had desired such a short statement we didn't think it was necessary to have to do that," Siggins said. "The governor has said from the beginning of the year in his State of the State address that redistricting was a significant reform for all of California. It is a policy piece of the governor's agenda for this year. And ensuring that California voters have an opportunity to consider it was an important thing for the governor as a matter of policy, not just politics."

Siggins said he would have stayed with ballot measure litigation through a final appeal to the California Supreme Court, but he had to cut his involvement short because he took a vacation in August.

The private lawyer who replaced Siggins on the case, Charles Bell of Bell, McAndrews and Hiltachk, did not bill taxpayers for his work as Siggins did. Bell, who frequently works on behalf of the Republican Party, was instead hired by the governor's campaign committee.

Past Secretaries Avoided Trouble
Legal affairs secretaries from earlier administrations said they kept a safe distance from ballot measure campaigning to avoid trouble.

Justice Raye said that when he drafted a redistricting proposal for Deukmejian in 1984 - an unsuccessful ballot measure that was very similar to Schwarzenegger's - he worked on it during his own time. Merksamer said the administration had a strict policy against campaign work on government time.

"All of the drafting and all of the meetings on the various drafts took place outside of my regular work hours, although it was not clear that such was legally required," Raye said. "I recall that my involvement ceased before the measure was circulated as an initiative measure."

If Schwarzenegger nominates Raye to the high court and he is confirmed, he might be called on to decide a post-election challenge to Proposition 77.

Kolkey's work on ballot initiatives goes back to 1994 when he served as legal affairs secretary for Gov. Pete Wilson. Wilson, a Republican, made Kolkey his lead negotiator on Indian gaming compacts, a high-profile assignment that later landed Kolkey a contract counseling the Schwarzenegger administration on gaming matters.

Kolkey helped Wilson prepare Proposition 209, the 1996 ballot initiative that all but eliminated affirmative action programs in California, and defended the measure against court challenges. He acknowledged he was involved in the drafting of Proposition 209, but said he was very cautious and avoided any campaigning.

"At the governor's request, I reviewed drafts of the measure before the initiative petition was finalized and circulated for signature," Kolkey said.

Wilson appointed Kolkey to the 3rd DCA in 1998. After serving on the court for five years, he returned to the San Francisco office of his former law firm, Gibson, Dunn & Crutcher.

Kolkey and the "Revolving Door"
Within one month of leaving the 3rd DCA, Kolkey managed to touch off a controversy over former judges appearing before their former colleagues.

In December 2003, Kolkey appeared before the 3rd DCA on behalf of a private client, the California Chamber of Commerce, prompting the entire bench to recuse itself and forcing the case to be transferred to another district. Scotland and the other justices wrote that it was a "very close question" whether they needed to disqualify themselves, but did so out of caution.

However, then-Senate leader John Burton, D-San Francisco, was troubled by what he called the "revolving door." Shortly after the Chamber of Commerce case, he introduced a bill to require the state Supreme Court and the State Bar to develop standards and rules of conduct for ex-justices who return as appellate lawyers.

Burton recommended barring judges from appearing before their former courts for one year, the same amount of time that lawmakers and senior government officials are prohibited from appearing before their former colleagues and agencies. Some federal district courts have a similar rule.

Schwarzenegger vetoed the bill, calling it unnecessary because the Supreme Court already had authority to set ethics rules. The judicial canon of ethics requires judges to recuse themselves when "a reasonable person aware of the facts could doubt" the court's ability to be impartial.

By the time the Proposition 77 litigation reached the appeals stage, Kolkey had been off the 3rd DCA for nearly 21 months.

The panelists in the case, Scotland, Coleman Blease and Kathleen Butz, apparently decided enough time had passed that the public would not view Kolkey as too cozy with the bench. Butz was appointed to the 3rd DCA only one month before Kolkey left the court.

Kolkey said the court's recusal was unnecessary, just as he feels it was in the 2003 case. He said judges are plenty capable of separating their decision-making from their relationships with both lawyers and other judges.

But not everyone is comfortable with Kolkey's turn-around from 3rd DCA justice to Proposition 77 rescue team.

"Talk about an inside game," Nunez said. "Here they have someone formulating legal strategy for their initiatives in private meetings who has appointed judges and sat on the very bench that they are trying to influence. What is alarming is the web of connections that weave the political with the judicial inside the governor's office."

Posted 10:20 PM by Howard Bashman

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October 13, 2005

CORPORATE AMERICA MAY HAVE A FRIEND IN MIERS
Corporate America Holds Fire on Miers Nomination

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - While some conservatives continue to criticize the nomination of Harriet E. Miers to the U.S. Supreme Court, corporate America has held its fire. In fact, some experts suggest that Miers and newly appointed Chief Justice John G. Roberts Jr. could form a new pro-business bloc on the court.

After decades in which most new nominees have been either appellate judges or academics, Miers, with no judicial experience, and Roberts, a judge for only two years, are attorneys who spent years representing big business.

Microsoft, the Walt Disney Co. and Dupont are some of the large firms Miers represented during her 29 years at Dallas firm Locke Liddell & Sapp.

Roberts was a prominent appellate advocate in Washington, D.C., for Hogan and Hartson for more than a decade before he was nominated to the U.S. Court of Appeals for the D.C. Circuit in 2003.

Mark I. Levy, who heads the appellate advocacy group at Washington firm Kilpatrick Stockton, said a Miers-Roberts axis would clearly change the court's approach to the business docket.

"One of the strong advantages of John Roberts was his extensive experience as a private practitioner," he said. "Harriet Miers would bring that same attribute to the court."

Robin Conrad, senior vice president of the U.S. Chamber of Commerce's National Chamber Litigation Center, noted that before Roberts' confirmation, no justices in recent years have had a strong business background.

"It's been a long time since there's been a justice on the court with a familiarity of the complexities of business cases," she said.

If Miers joins Roberts on the bench, together they could play a major role in determining which cases the court hears, a process that requires the approval of four justices.

Conrad said the business community has been concerned for some time that the court does not hear enough business-related cases.

Levy also predicted that the court will hear more business cases and that it may become more discerning about which cases it chooses.

"There has been some thought that they don't take the most important cases," he said.

Holland & Knight partner Martha W. Barnett, who worked alongside Miers on American Bar Association activities, agreed that Miers' credentials may be more appealing to the business community than other groups that have been more critical of the nomination.

"She is no stranger to the corporate boardroom," Barnett said of Miers. "I think she will be very sensitive to the challenges facing the business community."

The process of evaluating Miers' business credentials is still at an early stage, with groups such as the National Association of Manufacturers not yet commenting. However, the U.S. Chamber of Commerce has made positive noises about her nomination.

The chamber is examining 15 business-related cases that Miers worked on as part of its evaluation procedure, according to Conrad.

"This gives us a preliminary sense that she has been exposed to a wide range of business issues," she said. "That's a good thing for the business community."

Although the Chamber has not formally endorsed Miers, President and Chief Executive Officer Thomas J. Donohue described her as a "good pick" soon after the nomination.

Pat Cleary, a spokesman for the National Association of Manufacturers, said the organization is still investigating Miers, but he pointed to criteria that will be used to determine whether she will be endorsed.

The nominee must have "an understanding of the importance and practical consequences of decisions to business, with due regard for the importance of stability and certainty in fostering a healthy climate for business," according to the group's Web site.

"It's one of the things that she will be evaluated on," Cleary said.

Clearly, the cases Miers worked on will be the main source of evidence, although none were particularly high profile.

Most attention so far has focused on her representation of Microsoft in a case that started in 1993 when a group of customers filed suit, claiming that the company had unlawfully charged for new software that merely corrected a problem with an old application.

The judge in the case, who had initially granted class status, later changed her mind after representations from Miers and her colleagues.

Miers later represented Disney in a 1998 case at trial and on appeal.

Esprit Finance had sued Disney in Texas state court over a failed concert tour in Mexico. Disney lost, but appealed on the grounds that Texas did not have jurisdiction to hear the case.

SunGard was another company Miers worked with, defending it in a 1998 contract dispute that was eventually settled.

She also represented the Texas Automobile Dealers Association when it was threatened with a class action.

Though business leaders will take this experience into account in deciding whether to endorse Miers' nomination, her four years in the White House may also help sway them.

Sean Rushton, executive director of the Committee for Justice, which was formed to support President Bush's nominees, said many of those business leaders would have had personal dealings with Miers in Washington in recent years.

"They have met with her and some are familiar with her," he said. "They feel that from their perspective she would give them more of a fair shake."

If Miers is confirmed and joins Roberts on the court, it will be the first time there have been two justices so clearly identified with business since John Marshall Harlan and Charles Whittaker were on the bench together from 1957-1962, according to Supreme Court historian David J. Garrow.

The single justice since then most associated with the corporate world was Lewis F. Powell Jr., who retired in 1987, Garrow added.

Levy added that former Chief Justice William H. Rehnquist's experience with business issues is clearly eclipsed by Roberts'.

Although he described Justice Sandra Day O'Connor as "reasonably well disposed to business," Levy believes Miers, who is nominated to succeed her, has a "broader and deeper range of experience" in that regard.

Barnett noted that Miers' business background, which includes senior management positions at Locke Liddell & Sapp, would bring a whole series of different perspectives to the court.

She said Miers' experience as a "lawyer who has represented clients on real issues" should be emphasized, rather than the fact that she lacks judicial experience or academic expertise.

"I think the practicing lawyer is a wonderful new perspective to add to the court," Barnett added.

Posted 3:40 PM by Howard Bashman

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October 11, 2005

INTEREST GROUPS RETHINK THEIR MIERS STRATEGY
Interest Groups Rethink Their Strategy on Miers' Nomination

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - With a week to reflect on President Bush's decision to nominate Harriet E. Miers to the Supreme Court, interest groups on right and left have had to rethink their strategies radically to take into account the shift in the political climate.

Having spent the last few months gearing up for an epic battle over what most expected would be an prominent, proudly conservative nominee, organizations on both side of the political divide were thrown into a spin by the nomination of Miers.

The situation is very different from the president's first Supreme Court pick, John G. Roberts Jr., which disarmed some of the White House's critics while appeasing conservatives.

This time around, it's the conservatives who are most upset.

"It leaves them unhappy and dissatisfied," conceded Sean Rushton, executive director of the Committee for Justice, a group set up to support the president's nominees.

Liberal groups, such as People for the American Way and the Alliance for Justice, are adopting a wait-and-see approach, having been just as surprised by the Miers nomination as their conservative equivalents were.

Nan Aron, president of the Alliance for Justice, revealed that her group would have opposed openly some of the other possible nominees from Day One, such as 5th Circuit Judge Priscilla Owen and Janice Rogers Brown, U.S. Court of Appeals for the District of Columbia judge.

"The battle lines would have been very clearly drawn," Aron said.

Some prominent conservatives, particularly intellectuals, have been publicly criticizing the decision, creating what some believe to be a schism within the Republican Party that could even threaten Miers' confirmation.

"We are looking for a tipping point here," said Richard Davis, a political science professor at Brigham Young University. "Will these people become essentially unimportant, or will they encourage others to potentially sabotage the nominee?"

Thomas E. Mann, a political scholar at Brookings Institution, believes Miers will be confirmed, because the conservative opposition has not trickled down to grass-roots activists.

"After failing to anticipate the intensity of opposition from conservatives, Bush has moved to garner some support from them [activists]," Mann said.

If Miers "performs credibly" at the confirmation hearing, her nomination is unlikely to falter despite the questions being asked, he added.

The White House has, for example, won, to some extent, the religious wing of the party, in part by emphasizing Miers' evangelical faith.

Among those who have hinted at support for Miers are the Christian Coalition, the National Right to Life Committee and James Dobson, the influential Focus on the Family chairman.

However, the fact that Dobson has expressed some support for Miers has set alarms bell ringing among some pro-life senators, including Arlen Specter, R-Pa., the chair of the Senate Judiciary Committee.

Specter said over the weekend that, if Dobson has been told about Miers' views on abortion, the committee may ask him to testify on the subject during the confirmation hearing.

One other conservative constituency unlikely to rock the boat over the nomination is the business lobby, which would be reasonably happy to have a former corporate lawyer sitting on the bench.

The U.S. Chamber of Commerce, for example, has stated its support, with President and Chief Executive Officer Thomas J. Donohue praising Miers as a "good pick."

Whether the pressure continues to build on Miers from intellectual conservatives, the fact of the debate over her confirmation contrasts starkly with the Roberts nomination.

This is one of the reasons that the liberal groups, which were quick to ask questions of Roberts, are taking a more cautious approach this time around.

They are also happy to let conservatives do their work for them, Davies said.

"Holding back and letting the conservatives takes their shots weakens the president," he added.

No one knows enough to be able to make any judgment calls, Aron said.

"There's so little information available about Miers' record," she added. "We are involved in some major research."

As Rushton noted, all-out warfare was exactly what some conservatives, particular those who witnessed the Robert H. Bork hearings in 1987, were actively looking forward to.

"The sting of the Bork defeat was not just that one nominee was defeated," he said. "It seemed there was a repudiation of conservative judicial philosophy."

The conservatives who are most upset about Miers' nomination are the ones who believed that an "openly solid conservative" could be confirmed, Rushton added.

But he expressed doubt that the factions within the right would seriously threaten confirmation.

For one, his group and others allied to the White House will try to "educate the public" about Miers' conservative credentials," Rushton said.

They also will try to correct "mistaken information" about Miers' background, he added.

Rushton noted, for example that some commentators had incorrectly attributed views to Miers based on a mistaken interpretation of her role as chair of the American Bar Association's Rules and Calendars Committee.

The committee's decision in 1998 to support discussion of an international criminal court and same-sex adoptions did not reflect Miers' own beliefs on those issues, he insisted.

The vital unknown factor is how much influence the conservatives who are unhappy with the nomination will have on senators.

Some prominent conservatives, such as Sen. Sam Brownback, R-Kan., and Sen. Trent Lott, R-Miss., have stated reservations, and as Davies noted, the recent criticism the president has suffered over Hurricane Katrina and other issues may embolden them further.

Senators who are up for re-election next year also may have a reason to break with the White House, but only if the grass-roots activists are persuaded by the Washington think-tank elite that Miers should be opposed, Davies added.

"It's the base who will make the difference here," he said.

Rushton predicted that the worst thing that could happen from the conservative side is that groups simply will stay neutral and decline to endorse Miers.

"I doubt you will see outright opposition," Rushton said.

Aron claimed her organization is largely concerned about whether enough information will be made available about Miers' background for senators to reach a decision.

She conceded that the push for documents and any other evidence likely will be a joint effort by conservatives and liberals.

"Because so little is known about her, she will have a much higher burden to meet," Aron said.

Once the liberal groups become more involved in the process, criticizing Miers from the left, the status quo may be restored as conservatives rally around the president, Rushton said.

"More conservatives will come to be more respectful of the president's choice, and more liberal groups will start to raise their own voices in opposition," he explained.

At least, that's what he hopes will happen.

Mann, for one, is inclined to agree.

"Reassuring conservatives will increase Democratic opposition," he said. "So it's complicated but still winnable."

Posted 12:15 PM by Howard Bashman

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October 06, 2005

MIERS' BACKGROUND: MAINSTREAM, ESTABLISHMENT
Miers Likely Would Be Moderate Conservative

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Harriet E. Miers' active role in the organized bar in Texas and in the American Bar Association shows her to be a mainstream, establishment lawyer who likely would be a moderate conservative on the Supreme Court, according to lawyers who know her.

Her years of service to the legal profession indicate that she was keen to improve the image of the profession and encourage pro bono work while meeting the needs of corporate clients.

She was also a strong advocate for diversity who once said that gender and race should be taken into account when a president is planning to nominate a Supreme Court justice.

Friends and colleagues portray her as a middle-of-the-road legal leader. With the exception of her opposition to the ABA's taking a pro-choice position, they say she did not campaign on controversial issues, keeping her personal views largely to herself.

Anthony Palermo, former ABA secretary, predicted Miers would be a justice very similar to the woman she would replace on the court.

"I think she's frankly in the mold of Sandra Day O'Connor," Palermo said. "I think she will listen very carefully, study very thoroughly, and respond appropriately under the circumstances presented."

Martha W. Barnett, a former ABA president, expects Miers, if she is confirmed, to be a pragmatic justice who will examine each case on its merits.

"The more people get to know her, they will see that she reflects mainstream America," Barnett said.

She also noted that Miers' evangelical Christianity did not feature in most of her professional interactions.

"I have always known that Harriet was a very spiritual and religious person, but many people are," Barnett said. "She was not trying to proselytize or preach. She never wore her religion on her sleeve."

Another former acquaintance, former Texas Bar President Bill Whitehurst, described Miers as a down-to-earth but smart lawyer who never made any claim to be a legal scholar.

"She would never tell you she was an intellectual," Whitehurst said. "That's not to demean her intellect. It's not the area in which she practiced."

He described her as "generally open-minded" and "certainly capable of reading and interpreting law and writing opinions."

Whitehurst also noted that her close relationship with President Bush is just part of her professional approach to practicing law.

"She is loyal to Bush, ... but she is always loyal to her client," he said.

Supreme Court historian David Garrow said Justice Lewis F. Powell Jr., an ABA president in 1964, is one of the few recent justices who has been as active as Miers in bar activities.

Like Miers, Powell came to the bench with no previous judicial experience.

Justice John Marshall Harlan was another active ABA member who ended up on the court, Garrow said.

But he expressed doubt about whether Miers' involvement necessarily would influence her judicial philosophy.

"I don't think, per se, it says anything particularly important or substantive," Garrow said.

He did, however, predict that it would help her obtain a positive rating from the ABA.

Some lawyers active in the ABA believe Miers eventually would have become the organization's president if she had not received the call to go to work for Bush.

She was at that time one of two candidates for the association's No. 2 position, chair of the House of Delegates, but she withdrew her name from consideration once she moved to the White House.

Miers was a keen participant in bar activities from the mid-1980s leading up to her move to Washington, D.C., in 2001, when she joined the Bush administration as staff secretary.

In 1985, she became the first woman president of the Dallas Bar Association, and in 1992, she became the first woman to head the State Bar of Texas.

Miers also served in the ABA's House of Delegates from 1992 to 2001, was chair of the ABA Journal's Board of Editors from 1995 to 1998, and was appointed chair of the ABA's Commission on Multijurisdictional Practice, a post she was forced to resign on moving to Washington.

She also sat on several committees during that period and was chair of the ABA's Rules and Calendar Committee, described by San Francisco attorney Joanne Garvey as "one of the most prominent" committee posts.

Garvey described the committee members as "traffic cops" because they exert influence over what kind of issues the ABA's policymaking House of Delegates is likely to debate.

Since Miers' nomination to the Supreme Court Monday, much of the media interest has focused on her role in the debate over whether the ABA should take a position on abortion.

After the association voted to take a pro-choice stance, Miers was involved in an unsuccessful campaign in 1993 to force a referendum on the issue among the association's entire membership.

She advocated a neutral position on abortion, claiming that the ABA should not speak out on social issues.

Palermo, who joined Miers in the campaign, downplayed her role, saying she was involved largely because of her position as president of the Texas Bar at that time.

"I don't think, from my perspective, she was aligned with or against the neutrality position," he said.

As president of the Texas Bar, Miers was largely associated with her support for legal services and urged all lawyers in the state to perform 50 hours of pro bono work each year.

Miers was also a strong supporter of diversity within the legal profession, according to Diane C. Yu, a former general counsel of the California State Bar who has long been active in the ABA.

"She was supportive and encouraging of diversity and increasing the opportunities of underrepresented groups in the legal profession," Yu said. "The Harriet Miers I know is thoughtful, strong, independent, and a very intelligent person."

Miers explained the role that lawyers could play in the community at large in an interview with the Texas Bar Journal on her appointment as president in 1992.

"We as leaders of the State Bar should urge lawyers to be involved in their communities and in state affairs to encourage economic development, stability and wisdom in public policy," she said.

Miers added that one practical way to improve the image of lawyers would be to encourage alternative dispute resolution.

"Most of the public's experience in the legal system is in traffic or divorce courts," she said.

In one of her few references to the judiciary, Miers said in her interview with the Texas Bar Journal that the State Bar had a role in supporting the third branch before the state Legislature.

"As always, the State Bar should support improved facilities, better equipment, adequate numbers of courts and court personnel and reasonable compensation for the judiciary," she said.

As Texas bar president, Miers also spoke out about the poor quality of legal representation for death-row prisoners, an issue the Supreme Court has taken up in recent years in several ineffective-assistance-of-counsel cases.

Miers was quoted in the ABA Journal in July 1993 discussing a report that showed death-penalty representation in Texas to be among the worst in the country.

She said the state's reliance on volunteer lawyers was "unacceptable."

Miers added, "We're using a Band-Aid approach when the system needs an overhaul."

Her views on whether the president should consider gender or race when picking a Supreme Court nominee are revealed in an ABA Journal story from April 1992.

The story noted that Miers participated in a panel discussion in which the subject of Supreme Court nominations came up.

Miers, who was picked by Bush in part to ensure more than one woman on the Supreme Court, argued that both race and gender should have a bearing on selection, according to the article.

She was on the same side of that issue as Pamela Gilbert, legislative director of consumer group Public Citizen, and Barry Nace, of the Association of Trial Lawyers of America.

Panelists who disagreed with that position included conservative lawyer and commentator Bruce Fein, who has criticized Bush's decision to nominate Miers to the high court.

Reached at his Washington, D.C., office Wednesday, Fein stressed that he did not oppose the nomination because Miers is a woman but because he does not believe she has sufficient background in constitutional law to be a justice.

He said her career in corporate law and related bar activities is not adequate training, because she would not have needed to wrestle with key constitutional matters, such as the separation of church and state and abortion.

"In 30-something years as a lawyer, she has not written or said a word on these critical issues," Fein said. "She's going to be junior varsity playing in the NBA."

Daily Journal Staff Writer Leslie Simmons in Los Angeles contributed to this story.

Posted 11:44 AM by Howard Bashman

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October 05, 2005

NOMINEE HAS LONG BACKED LEGAL SERVICES
Improving Access To Justice Is Issue Close to Her Heart

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Supreme Court nominee Harriet E. Miers has a long track record of supporting legal services for the poor, a dedication that has even led her to unofficially lobby President Bush to support funding for the Legal Services Corp., according to several lawyers who know her.

Prominent members of the legal community say they believe Miers' support for improved access to justice is very much an issue close to her heart, dating back to her time as an active participant in the Texas bar and the American Bar Association.

Her strong record on the issue could help her deflect attacks from Democrats during the confirmation hearing, but might also serve to add to concerns among social conservatives that she is a stealth candidate who is more moderate than they would hope.

Since arriving in Washington, D.C., in 2001 as President Bush's staff secretary, Miers has continued to advocate for better legal services, according to Bill Whitehurst, a former chair of the ABA's Standing Committee on Legal Aid and Indigent Defendants.

Whitehurst said he had spoken to her on the issue of funding for legal services within the last six months, since she became White House counsel.

"I continue to work with her on legal services for the poor issues," Whitehurst added. "In every position she has held, she has been a supporter of that, including federal funding."

He said her prominent position in the White House allowed her to be "very helpful ... in advising President Bush" to ensure that the Legal Services Corp. receives substantial budget allocations.

Asked whether she agreed with Whitehurst's assessment, former ABA president Martha W. Barnett said, "That's what I understand as well."

Barnett, with Holland & Knight in Florida, conceded that funding for the corporation is a "controversial issue" because of the opposition of some conservatives.

"There are a core group of people who don't believe in federal funding," Barnett said. "That's never been a burden of Harriet's."

Esther Lardent, president of the Washington, D.C.-based Pro Bono Institute, also stated that Miers - who she worked with on an ABA legal services committee - has been an advocate for the corporation within the White House.

"She has been very supportive of that and has had the president's ear," Lardent said.

Helaine M. Barnett, the president of the corporation was not available for comment Tuesday, but a survey of her agency's budget over the last few years shows no substantial change under the Bush administration.

This year, the House approved $330 million for the agency, the same as its budget for fiscal year 2005.

The Senate has approved $358 million, with $8 million to be put aside for the victims of Hurricane Katrina.

Lardent said that the White House's support for maintaining the level of funding was a stark contrast to the Reagan administration, which attempted to eliminate all funding for legal services.

Miers' commitment to access to justice dates back to her days in Texas.

It was the issue that she chose to champion when she was president of the Texas bar in 1992-93.

"Our Pledge of Allegiance promises equal justice for all," she told the Texas Bar Journal in a June 1992 interview marking her appointment as president. "We know that we have failed in fulfilling this promise to segments of our society."

She repeatedly returned to the subject in monthly editorial columns she wrote for the bar magazine.

In the June 1992 issue, she painted a fairly bleak picture of society, but also indicated the positive role lawyers could play in improving the situation.

"Hostilities among the races, abuse of alcohol and drugs, disintegration of families and neighborhoods, failing educational systems, and rampant crime challenges our communities," she wrote.

But Miers added that lawyers could help society at large tackle some of those problems.

She supported the bar association's policy of setting an aspirational target of 50 hours a year in pro bono service by each attorney.

In reaching that decision, the association rejected setting mandatory goals, which some lawyers resented, Miers said in a July 1992 editorial in the bar magazine.

She wrote that the debate over what policy to adopt was in danger of overshadowing the work itself and called for members to focus on improving legal services.

"[W]e cannot afford all-consuming, continuous, unproductive, unduly decisive, distracting and self-flagellating discussion ... to drain all of our time and resources," Miers said.

She also told the Texas Bar Journal in the 1992 interview that "what we are doing is not enough" and noted the complaint of many lawyers that "the burden created by numerous criminal court appointments" was limiting the time they could spend on civil pro bono matters.

Earlier in her career, when she was president of the Dallas bar in 1985, Miers spearheaded a pro bono program there which, after she left office, was recognized by an award from the ABA, according to Lardent.

Miers continued to advocate increased support for legal services as a member of the ABA's House of Delegates during the 1980s and 1990s, according to San Francisco attorney Joanne Garvey.

"Harriet was one of the people who was willing to stand up and be counted," she said.

Garvey added that the ABA membership had not always been supportive of legal services and described Miers' position as "not necessarily that popular."

Whitehurst, who himself was president of the Texas bar in 1986-87, said her support for legal services indicates first and foremost that she is very much the professional lawyer, whatever her political affiliations.

"She is conservative; she has always been conservative," he said. "But she is a lawyer."